Justifying Absoluteness: Disentangling the Gafgen v Germany Decision
Transcript of Justifying Absoluteness: Disentangling the Gafgen v Germany Decision
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Justifying Absoluteness: Disentangling the Gafgen v Germany Decision
Melissa Conway*
A. Introduction
Article 3 of the European Convention on Human Rights (‘ECHR’) protects individuals from
torture and inhuman or degrading treatment or punishment.1 As with other rights under the
ECHR, it has been interpreted by the European Court of Human Rights (‘ECtHR’ or ‘the
Court’) as comprising both a negative and a positive obligation.2 The former prohibits a
State from subjecting individuals to Article 3 conduct; the latter requires that a State take
proactive measures to ensure respect for the right.3 Moreover, this provision admits no
exceptions, and the protection it provides cannot be derogated from under any
circumstances.4 This has led to Article 3's classification as an ‘absolute right’ – one which
trumps or limits all other rights when there is a conflict, applies in all situations and pays no
regard to the victim's conduct.5 6 Taken together, therefore, the Court has developed a
protective framework for Article 3 that is intended to be both comprehensive and strong.
* BA (Cantab), LL.M (UCL). This paper was submitted as the author’s LL.M dissertation at University College London.
1 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 2 The concept of ‘positive obligations’ was first introduced by the Court in the Belgian Linguistic Case (1968) 1 EHRR 252,
para 3: “By the terms of the first sentence of this Article (P1-‐2), ‘no person shall be denied the right to education’… The negative formulation indicates, as is confirmed by the ‘preparatory work’… that the Contracting Parties do not recognise such a right to education as would require them to establish it at their own expense, or to subsidise, education of any particular type or at any particular level. However, it cannot be concluded from this that the State has no positive obligation to ensure respect for such a right as is protected by Article 2 of the Protocol (P1-‐2). As a ‘right’ does exist, it is secured, by virtue of Article 1 (art.1) of the Convention, to everyone within the jurisdiction of a Contracting State” (emphasis added).
3 See e.g. J. Akandji-‐Kombe, 'Positive obligations under the European Convention on Human Rights' (January 2007) <www.echr.coe.int/LibraryDocs/DG2/HRHAND/DG2-‐EN-‐HRHAND-‐07(2007).pdf> accessed 5 August 2014; J. Eadie and K. Gallafent, 'Blackstone Chambers: Positive Obligations under Articles 2 and 3 of the ECHR' (18 November 2005), <www.blackstonechambers.com/document.rm?id=143> accessed 5 August 2014.
4 Although Article 15(1) ECHR allows states to derogate from the ECHR “[i]n time of war or other public emergency threatening the life of the nation...”, Article 15(2) ECHR states that: “No derogation from… Article 3… shall be made under this provision.”
5 See e.g. Ireland v UK (1978) 2 EHRR 25, para 163; Selmouni v France (1999) 29 EHRR 403, para 95; Chahal v UK (1996) 23 EHRR 413, para 79. But note Judge Sir Gerald Fitzmaurice’s concerns with regarding the prohibition as absolute: Tyrer v UK (1978) 2 EHRR 1, Separate Opinion of Judge Sir Gerald Fitzmaurice, para 3.
6 A. Gewirth, 'Are There Any Absolute Rights?' (1981) 31 Philosophical Quarterly 1, p.2: “A right is absolute when it cannot be overridden in any circumstances, so that it can never be justifiably infringed and it must be fulfilled without any exceptions.”
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However, in Gafgen v Germany,7 the ECtHR cast doubt on the extent to which Article 3's
protection is truly absolute. In its decision the Court determined that, contrary to past
rhetoric, the distinction drawn in Article 3 between 'torture' and 'other ill-‐treatment' is no
longer confined to issues of fair labelling,8 but rather has practical consequences. This is
demonstrated by the fact that the Court held that whilst the admission of real evidence
obtained by torture would render a trial unfair, and is therefore prohibited, the admission of
real evidence gained by ill-‐treatment would not, and is therefore allowed.9 In reaching this
conclusion, the ECtHR diluted the absolute nature of Article 3 protection; allowing evidence
obtained by ill-‐treatment indirectly undermines the State's positive obligation to ensure full
enjoyment of the right that Article 3 creates.
Why was the Court led to create such an exception to the 'absoluteness' of Article 3? This
paper seeks to explain the Gafgen decision, and answer this question, by examining a
separate but overarching problem: what are we trying to achieve through affording a right
absolute protection? It will be argued that absoluteness pursues the primary aim of
restricting conduct that is morally reprehensible and, in order to give effect to it, the
secondary aims of clarity and inclusiveness. However, the way in which the ECtHR applies
Article 3 – by reading torture narrowly and ill-‐treatment broadly, whilst protecting both
absolutely – fails to balance these aims appropriately. Consequently, in Gafgen v Germany
the Court opted to abandon its legal framework for Article 3 in order to reach a decision
that was consistent with the moral justification for absoluteness.
In Section B, the Gafgen case will be summarised and the Court's reasoning explained. After
outlining the problems with the ECtHR's current approach, Section C will put forth two
alternatives. The first is to define torture and ill-‐treatment narrowly in order to protect both
absolutely. The second is to read ill-‐treatment broadly, but protect only torture absolutely.
In Section D, these alternatives will be evaluated against the aims of absoluteness in order
7 Gafgen v Germany (2010) 52 EHRR 1. 8 See e.g. Ireland v UK, n5, para 167: “The Court considers that... it was the intention that the Convention, with its
distinction between 'torture' and 'inhuman or degrading treatment', should by the first of these terms attach a special stigma to deliberate and inhuman treatment causing very serious and cruel suffering” (emphasis added).
9 Gafgen v Germany, n7, paras 172-‐188.
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to determine which is better able to strike an appropriate balance between the aims.10 It
will be concluded that the second alternative is preferable in terms of its compatibility with
the justifications for absoluteness. Finally, in Section E the approach under the second
alternative will be applied to the facts of Gafgen to illustrate how it could improve on the
reasoning of the ECtHR.
B. The Gafgen Case
Background
The Gafgen case concerned a law student who kidnapped a child, Jakob. After killing the boy
and hiding his corpse in a pond, Gafgen proceeded to leave a ransom note at Jakob’s
parents’ residence. The note gave the impression that Jakob was still alive: it demanded one
million euros and stated that the parents would see their son again if the kidnappers
received the ransom and managed to leave the country with it.11
Three days later, Gafgen collected the ransom. He was subsequently arrested at Frankfurt
am Main airport – from where he was trying to flee the country – and taken to the police
station to be questioned. At the police headquarters, Gafgen was informed that he was
suspected of having kidnapped Jakob. He was then questioned in relation to the matter.
Gafgen told the police that Jakob was being held by other (fictitious) kidnappers in a hut by
a lake. Failing to get concrete information from Gafgen, and operating under the belief that
Jakob was still alive, the police became concerned that time was running out to save the
boy. Thus, contrary to superior orders, the deputy chief of the Frankfurt police ordered
officer E to threaten Gafgen with considerable physical pain. He also authorised E to
administer such pain, if necessary. E carried out the order to threaten Gafgen but did not
inflict the pain upon him because, approximately ten minutes after being threatened,
10 This will be assessed normatively, ignoring the textual limitations of the ECHR and instead simply assessing the
approaches on the basis of merit. 11 Gafgen v Germany, n7, paras 10-‐12.
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Gafgen disclosed the location of Jakob’s body. The police then drove Gafgen to the named
location, a lake, where he told them where he had hidden the body.12
During Gafgen's criminal trial for the extortionate abduction and murder of Jakob, the
German Courts acknowledged that the police officers’ threat to inflict pain on Gafgen not
only breached German law, but also constituted a violation of Article 3 ECHR. However, the
Frankfurt am Main Regional Court refused to discontinue criminal proceedings on this
basis.13 Moreover, whilst the Frankfurt Court did take the view that all prior confessions and
statements made by the applicant were inadmissible, it was happy to admit the real
evidence derived from these statements (the ‘fruit of the poisonous tree’), such as Jakob’s
corpse.14 Following the ruling that such evidence was admissible, Gafgen admitted to having
killed Jakob. He was convicted of murder and kidnapping with extortion causing the death
of the victim, and sentenced to life imprisonment.15
Gafgen attempted to appeal the decision on points of law concerning the refusal to
discontinue criminal proceedings against him, and the use of evidence obtained by his
mistreatment. However, both the Federal Court of Justice and the Federal Constitutional
Court dismissed his appeal.16 The applicant then applied to the ECtHR to consider his case.
The ECtHR Decision
Before the ECtHR, the applicant claimed a violation of two of his ECHR rights, namely:
● His Article 3 right, which he argued was violated by his treatment during the police
interrogation;17 and
● His Article 6 right,18 which he argued was violated by the admission of evidence
obtained as a result of a confession extracted from him in breach of Article 3.19
12 ibid, paras 13-‐17. 13 Gafgen v Germany, n7, paras 26-‐27. 14 ibid, paras 28-‐31. 15 ibid, paras 32-‐33. 16 ibid, n7, paras 37-‐45. 17 ibid, para 75. 18 Article 6 ECHR protects the right to a fair trial. 19 Gafgen v Germany, n7, para 133.
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The case initially went to the Chamber of the ECtHR,20 in which the majority essentially
agreed with the German Court's finding that Gafgen's Article 3 right had been violated, but
that the violation had been sufficiently remedied through domestic proceedings against the
police officers.21 However, Gafgen appealed to the Grand Chamber, which accepted the
case. Three main issues were at stake: (1) whether the threats made by the police officers
constituted a violation of Article 3; (2) if so, whether Germany had successfully remedied
the breach; and (3) whether the use of real evidence in the criminal trial against Gafgen was
permissible.22
The Court first examined Gafgen's Article 3 claim, and agreed with the applicant that his
right had been violated. The Court began its evaluation of the issue by reiterating that
Article 3 is absolute in nature and, consequently, applies irrespective of the victim’s
conduct.23 It was therefore irrelevant to the Court's evaluation of the matter that Gafgen
was suspected of kidnapping Jakob. The Court then went on to assess the treatment to
which Gafgen was subjected. The Court referred to earlier decisions stating that a threat of
torture could constitute a violation of Article 3. On this basis, it found that the severity of
the treatment was sufficient for it to cross the minimum threshold of Article 3.24 However,
relying on its distinction between torture and other ill-‐treatment, the Court determined that
the conduct was not serious enough to constitute torture and instead was more suitably
classified as ill-‐treatment.25
Before the Court could go on to conclude that Article 3 had been violated as a result of
Gafgen's ill-‐treatment, it had to consider whether Gafgen could still be considered a ‘victim’
20 Gafgen v Germany [2008] ECHR 565. 21 Judge Kalaydjieva dissented, arguing that the applicant remained a victim of forced self-‐incrimination, which had
rendered his trial unfair: Gafgen v Germany, n20, Dissenting Opinion of Judge Kalaydjieva, pp.34-‐35. 22 L. Oette, ‘Redress Newsletter: The European Court Grand Chamber Judgment in Gafgen v Germany’ (2010) p.6
<www.redress.org/Gafgen_v_Germany_Lutz_Oette_article.pdf> accessed 29 July 2014. 23 Gafgen v Germany, n7, paras 87, 107. 24 This 'severity test' is applied by the Court in all Article 3 cases, to determine whether the conduct is serious enough to be
considered under the provision, and it “depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim.”: Gafgen v Germany, n7, para 88.
25 ibid, para 108.
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under Article 34 ECHR.26 The Chamber had found that Gafgen had no standing as a victim
because the domestic courts had expressly acknowledged that he had been subjected to
Article 3 treatment, and the police officers had been prosecuted and convicted in domestic
criminal trials, thereby providing Gafgen with sufficient redress.27 However, the Grand
Chamber of the ECtHR rejected this argument because, although subjected to criminal trials,
the officers involved were treated very leniently: their convictions were met with suspended
sentences, and one of the officers had even been promoted within the police force.28
Consequently, the Court took the view that Gafgen was indeed the victim of an Article 3
violation.
However, of primary concern for us is the claim brought under Article 6. It was here that the
Court’s reasoning diluted the 'absoluteness' of Article 3. This aspect of the case turned on
the question of whether the real evidence obtained as a result of Gafgen’s subjection to
Article 3 treatment could be admissible in the criminal trial against him, without rendering
the trial unfair under Article 6. This was not the first time the Court was faced with the
issue. In the earlier case of Jalloh v Germany,29 an emetic was forcibly administered to the
applicant, in order to force him to regurgitate a plastic bag that was believed to contain
drugs. This evidence was later used to help secure a criminal conviction against the
applicant for drug trafficking. When the case came before the ECtHR, the Court considered
whether the applicant's treatment rendered the trial unfair. The Court clearly stated that:
“incriminating evidence – whether in the form of a confession or real evidence –
obtained as a result of acts of violence or brutality or other forms of treatment
which can be characterised as torture – should never be relied on as proof of the
victim’s guilt, irrespective of its probative value.”30
26 This provision requires that an individual be a ‘victim’ in order for the Court to hear their case: “The Court may receive
applications from any person, nongovernmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
27 Gafgen v Germany, n7, para 109. 28 ibid, paras 121-‐130. 29 Jalloh v Germany (2007) 44 EHRR 32. 30 ibid, para 105 (emphasis added).
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In other words, the Court prohibited the use, in a criminal trial, of confessions or real
evidence gained by torture. However, with respect to the use of real evidence obtained by
ill-‐treatment, the Court in Jalloh then seemed to suggest that the unfairness of a trial will be
case-‐specific. Nevertheless, having found that on the facts Article 6 had in fact been
violated, the Court did not provide much in-‐depth reasoning on the issue.31
Thus, in Gafgen v Germany the Court was presented with the opportunity to clarify the
point.32 Despite stating unequivocally in its evaluation of Article 3 issues that the right is
absolute, it was not persuaded that this extended to the use of real evidence in criminal
trials. Instead, the majority focused on “whether the proceedings as a whole, including the
way in which the evidence was obtained, were fair.”33 The Court noted that the use of
statements obtained as a result of Article 3 treatment would render a trial unfair. However,
with respect to the admission of real evidence, the Court took the view that, because the
real evidence was corroborated by untainted evidence, “there was a break in the causal
chain” between the applicant's ill-‐treatment and his conviction at trial.34 Consequently, the
Court found that, as the use of real evidence was not determinative of the applicant's
conviction and Gafgen's defence rights were respected, there had been no breach of Article
6.35
Such a result does not fit with the absolute nature of Article 3, which leaves no room for
balancing prohibited conduct against its weight as evidence in a criminal trial. The existence
of corroborating evidence does not render the use of Article 3 conduct acceptable, and it
has even been suggested that without the evidence obtained by Article 3 Gafgen’s
conviction may have been restricted to a lesser crime.36 However, it was clear that the Court
31 ibid, paras 106-‐108. 32 Gafgen v Germany, n7, para 167: “In its Jalloh judgment, the Court left open the question whether the use of real
evidence obtained by an act classified as inhuman and degrading treatment, but falling short of torture, always rendered a trial unfair, that is, irrespective of, in particular, the weight attached to the evidence, its probative value and the opportunities of the defendant to challenge its admission and use at trial”.
33 ibid, para 163. 34 ibid, para 180. 35 ibid, paras 187-‐188. 36 N. Simonsen argues that the untainted evidence could have supported a conviction for kidnapping with extortion, but
not necessarily a conviction for murder. She also notes that it is possible the applicant may not have confessed if the real evidence had been excluded at his trial: ‘Is torture ever justified?’ (EJIL:Talk!, 15 June 2010) < www.ejiltalk.org/%E2%80%98is-‐torture-‐ever-‐justified%E2%80%99-‐the-‐european-‐court-‐of-‐human-‐rights-‐decision-‐in-‐gafgen-‐v-‐germany/> accessed 28 July 2014.
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wanted to reach such a decision – even if it had to ‘fudge’ its legal reasoning in order to do
so. This is evidenced by the fact that the Court avoided a full examination of the implications
for Article 3 associated with allowing the real evidence, by viewing the issue solely through
the lens of Article 6. This enabled the Court to justify allowing the evidence on the grounds
that:
“… contrary to Article 3, Article 6 does not enshrine an absolute right... the Court
considers that both a criminal trial’s fairness and the effective protection of the
absolute prohibition under Article 3 in that context are only at stake if it has been
shown that the breach of Article 3 had a bearing on the outcome of the proceedings
against the defendant, that is, had an impact on his or her conviction or sentence.”37
Framing the issue in this way meant that the Court was able to pursue reasoning based on
an assessment of whether the real evidence was too ‘tainted’ by the Article 3 treatment for
it to be admitted, rather than acknowledging that evidence obtained by Article 3 treatment
should be automatically excluded – as its admission would be contrary to the absolute
nature of the right.38 Consequently, the ECtHR was able to conclude that, as the real
evidence had not impacted Gafgen’s decision to confess at trial, the admission of the
evidence violated neither Article 3 nor Article 6 of the ECHR.39
The Problematic Nature of the ECtHR’s Reasoning
The ECtHR’s approach in Gafgen is both flawed in its reasoning and problematic in its
consequences. As was alluded to above,40 it is inappropriate to frame the issue of real
evidence obtained by Article 3 treatment solely through the lens of Article 6. This is because
the fulfilment of States’ positive obligation to protect individuals from conduct prohibited
by Article 3 depends on whether and in what way the fruits of Article 3 conduct are used.
The link between Article 3 and Article 6 cannot be ignored: refusing to prohibit real
37 Gafgen v Germany, n7, para 178. 38 This was the view taken by the dissentients in the case. See below, ‘The Problematic Nature of the ECtHR’s Reasoning’. 39 Gafgen v Germany, n7, paras 179-‐188. 40 See section A.
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evidence obtained by ill-‐treatment indirectly undermines Article 3. The consequences for
Article 3 are relevant to the application of Article 6 because the former is absolute.
Not only does the Court’s approach result in improper legal conclusions, it also ignores the
heart of what is at stake: the moral abhorrence of Article 3 conduct. This was recognised by
Lord Bingham in the UK House of Lords’ decision in A and Others (No 2), in relation to the
question of the permissibility, under English law, of evidence obtained by torture:
“It trivialises the issue before the House to treat it as an argument about the law of
evidence. The issue is one of constitutional principle, whether evidence obtained by
torturing another human being may lawfully be admitted against a party to
proceedings in a British court, irrespective of where, or by whom, or whose authority
the torture was inflicted. To that question I would give a very clear negative
answer.”41
Thus, by ignoring the importance of the fact that Article 3 was involved, the majority in
Gafgen trivialised the issue. This was recognised by the dissentients, who heavily criticised
the majority's reasoning on the grounds that no “intellectual construct can overcome the
inherent wrong that occurs when evidence obtained in violation of Article 3 is admitted into
criminal proceedings”42 and, because Article 3 is absolute, “all violations thereof are serious
and, in our view, the most effective way of guaranteeing that absolute prohibition is a strict
application of the exclusionary rule when it comes to Article 6.”43
Moreover, in an effort to reach its desired conclusion, the Court treated Article 6 as superior
to Article 3,44 and in so doing created an exception to the absoluteness of Article 3. This, in
turn, has a number of negative consequences. Firstly, attaching practical effects to the 41 A and others v Secretary of State for the Home Department (No.2) [2006] 2 AC 221, para 51 (per Lord Bingham). Note
that in the preceding paragraph Lord Bingham referred to the importance of the common law's treatment of torture with abhorrence. This view, he points out, is now shared by the numerous States that have signed up to the UN Convention Against Torture.
42 Gafgen v Germany (2010) 52 EHRR 1, Joint Partly Dissenting Opinion of Judges Rozakis, Tulkens, Jebens, Ziemele, Bianku and Power, para 9.
43 ibid, para 10. 44 K. Rigg, 'The Prohibition on Torture in Cases Heard by the European Court of Human Rights' (2011) 1(1) RECorDIP, p.19:
“... the Court should not, as it did in Gafgen v Germany, see the issue through the lens of article 6, as such a position makes article 3 subservient to article 6.”
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distinction between torture and ill-‐treatment is a cause of concern for legal certainty. As
Article 3 is absolute, the reasoning that was outlined in Jalloh v Germany in relation to the
use of torture evidence should have applied equally to all other ill-‐treatment that reached
the threshold of severity for Article 3. Thus, there should have been no question whether
the evidence was admissible: if obtained by Article 3 conduct, it should be excluded. It is
unclear why the Court in Jalloh, and subsequently in Gafgen, felt justified in treating
evidence obtained by torture differently from that obtained by other ill-‐treatment.45
Indeed, this very point was made by a number of the dissentients in the Gafgen case itself,
who queried:
“If [real evidence obtained by inflicting inhuman treatment upon an accused person]
can have no bearing [on the outcome of trial proceedings], what, one wonders, is
the purpose of its admission? And why, in principle, should the same reasoning not
now apply to real evidence obtained by torture? If a break in the causal chain from
torture to conviction can be established – where, for example, a torture victim
chooses to confess during trial – why not permit the admission of such evidence at
the outset of his trial and wait to see if any break in the causal chain might occur?
The answer is manifestly obvious. Societies that are founded upon the rule of law do
not tolerate or sanction, whether directly, indirectly or otherwise, the perpetration
of treatment that is absolutely prohibited by Article 3 of the Convention.”46
This supports the view noted above, that allowing real evidence obtained by ill-‐treatment
indirectly supports Article 3 conduct.47 Yet, the majority in Gafgen did not take this view;
they were happy to draw a distinction between the way in which the Court treats torture
and other ill-‐treatment, as well as between the way in which it treats the admission of
statements at trial and the admission of real evidence. Consequently, the Gafgen decision
leaves the law in a state of flux: how do we know when exceptions to Article 3 will apply?
This question is particularly difficult to answer because in Gafgen the Court focused its
reasoning on Article 6, thereby providing little guidance as to when an exception to Article 3
45 K. Rigg, n44, p.18. 46 Gafgen v Germany, n42, para 9. 47 See section A.
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might be justified. Moreover, Article 3 gives no indications of how we should treat
exceptions; presumably this is the result of the provision being intended to apply absolutely.
Additionally, the Gafgen decision is significant in its impact on borderline cases. Giving
practical effect to the torture/ill-‐treatment distinction means that the classification of
conduct takes on critical importance. For example, in its evaluation of the Gafgen case,
Redress, an NGO, took the view that the treatment to which Gafgen was subjected could
have been characterised as torture.48 Not only does correct classification of conduct have
fair labelling implications,49 but it also highlights the fact that the ECtHR’s decision to
characterise the conduct as ill-‐treatment was not clear-‐cut. Yet, the Court's finding that
Gafgen was subject to ill-‐treatment rather than torture made the difference between the
admissibility of evidence being acceptable and it rendering the trial unfair and an ECHR
violation. It is therefore clear that this is not a trivial matter.
A final possible consequence of the Court's reasoning in Gafgen is that it has the potential to
threaten the protection of more serious conduct under Article 3. If the Court is willing to
develop exceptions for cases of ill-‐treatment – which is supposed to be absolute – we are
led to wonder what is to prevent either the ECtHR, or other courts which apply its
jurisprudence, from extending such reasoning to cases of torture?50 Particularly worrisome
in this regard is the fact that, when considering the admissibility of real evidence, the Court
in Gafgen willingly flouted the very statements it had made in relation to the Article 3 only a
few paragraphs earlier. The Court’s approach is therefore inconsistent and unpredictable; it
seriously threatens the Court's credibility in protecting Article 3.
48 L. Oette, n22, p.1: “As recognised by the Court, threatening G. with intolerable pain instilled ‘considerable fear, anguish
and mental suffering’ which made him talk. The threatened treatment would have certainly caused ‘very serious and cruel suffering’ and it is not readily apparent why the ‘severity of the pressure exerted and the intensity of the mental suffering caused’ should not be equated with torture.”
49 See n8. 50 This 'slippery slope' argument is explained, more generally, in O. Gross, 'The Prohibition on Torture and the Limits of the
Law' in S. Levinson (ed.) Torture (OUP, 2004), p.11.
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These unsatisfactory consequences of the Gafgen judgment have been considered in detail
by a number of commentators.51 However, of more interest to us is the question of why the
Court was led to make a decision that diluted Article 3 protection, in spite of such
consequences and in complete disregard of its prior affirmation of the absolute nature of
the right.
C. Understanding the ECtHR’s Reasoning
This paper takes the view that the ECtHR’s decision in Gafgen may be explained by
reference to the way in which the Court has applied the torture/ill-‐treatment distinction. By
interpreting torture narrowly and ill-‐treatment broadly, whilst protecting both absolutely,
the ECtHR has created a framework in which it affords protection to conduct which falls
beyond the moral justification for absolute protection. This position will be elaborated and
contrasted with two alternative approaches.
The ECtHR’s Approach
The ECHR prohibits Article 3 conduct absolutely – it trumps or limits all other rights when
there is a conflict.52 Within the provision, however, several forms of prohibited conduct may
be identified: torture, inhuman treatment or punishment, and degrading treatment or
punishment. As was noted above, the ECtHR has chosen to distinguish 'torture' from 'other
ill-‐treatment'. It has interpreted the former narrowly and the latter broadly.53 Thus, for
conduct to be torture there must be both a particular degree of severity and an element of
purpose.54 By contrast, other ill-‐treatment may include conduct that we would consider far
51 See e.g. K. Rigg, n44 (arguing that the Court's decision regarding the admissibility of real evidence weakens the absolute
prohibition on inhuman and degrading treatment); N. Simonsen, n36 (critiquing the Court for emphasising the absolute nature of Article 3 ECHR in a way which is not borne out in the result of the case).
52 See section A. 53 K. Rigg, n44, p.14. 54 With respect to severity, see Ireland v UK, n5, in which the Court defined torture as “deliberate inhuman treatment
causing very serious and cruel suffering”. The purposive element of torture was highlighted in the Greek Case, in which the Court referred to torture as an “aggravated form of inhuman treatment” which “has a purpose, such as the obtaining of information or confession, or the infliction of punishment.” See Report of 5 November 1989, Yearbook XII (1969) p.186.
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less serious – such as claims of insufficient social benefits.55 Thus, the absolute nature of
Article 3 combined with the Court's reading of 'other ill-‐treatment' means that the Court has
created a framework in which it is likely for there to be conflict of rights involving ill-‐
treatment that is fairly trivial.
In such cases, it seems inappropriate for Article 3 to automatically trump all other rights –
including, for example, the right to life. This is because it does not fit with the moral
justification for the absoluteness of Article 3. The primary aim of absoluteness, particularly
in respect of Article 3, is to prohibit conduct that is considered so morally reprehensible that
it is never acceptable.56 57 This rationale for absoluteness suggests “that some acts are
inherently immoral or would certainly be incompatible with fundamental human rights or
basic notions of justice or fairness.”58 Particularly with respect to torture, “there has been a
broad and confident consensus that [it] is uniquely 'barbaric' and 'inhuman': the most
profound violation possible of the dignity of a human being.”59 This has two implications:
no-‐one should be subjected to such treatment, and balancing is irrelevant to determining
wrongfulness.60
However, by defining ill-‐treatment broadly the ECtHR has extended Article 3 beyond the
scope of the abhorrence that justifies its absolute nature. Consequently, cases come before
the Court in which it must protect conduct absolutely, as a logical consequence of its
interpretation of Article 3, but which do not fit with a key justification underlying the
prohibition. As a result, “the need to take a more nuanced approach to its application has
increased.”61 Indeed, this is why the Court was led to its decision in Gafgen: the Court
justified ignoring the legally correct result on the basis that the evidence was sufficiently 55 Larioshina v Russia (App no.56869/00) (2002) Second Admissibility Decision, para 3: “... the Court considers that a
complaint about a wholly insufficient amount of pension and other social benefits may, in principle, raise an issue under Article 3 of the Convention…”
56 O. Gross, n50, p.1; Y. Shany, ‘Can the Absolute be Relativized?’ (2007) 56 Catholic University Law Review 837, p.843. 57 D. Sussman suggests that, in the case of torture, the conduct is considered so abhorrent because the victim is made to
feel complicit in their loss of agency and their pain: “What is distinct about torture... is that it does not just traduce the value such dignity represents by treating its subject as a mere means. Rather torture, even in the 'best' case, involves a deliberate perversion of that very value, turning our dignity against itself in a way that must be especially offensive to any morality that fundamentally honours it.” See 'What's Wrong With Torture?' (2005) 33 Philosophy and Public Affairs 1, p.19.
58 Y. Shany, n56, p.843. 59 D. Sussman, n57, p.2. 60 T. Nagel, 'Personal Rights and Public Space' (1995) 24 Philosophy and Public Affairs 83, pp.84-‐85. 61 M. Evans, 'Getting to Grips with Torture' (2002) 51 ICLQ 365, p.373.
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‘untainted’ for the trial to be fair. The implication of the Court’s latter finding is that Article
3 conduct was not so morally reprehensible as to justify trumping the rights of the
kidnapped boy and, by extension, limiting the use of real evidence.62
One could challenge the view that the use of real evidence obtained by the ill-‐treatment of
Gafgen was morally justified; it could be argued that there was in fact no disconnect
between the legal conclusion the Court should have drawn and the moral justification for
absoluteness.63 However, assuming the Court's evaluation of the morality of admitting real
evidence is appropriate,64 the fact remains that the Court understood the case before it as
presenting a choice between a legally correct answer and a morally correct one. Yet, rather
than narrowing its definition of ill-‐treatment (which would have allowed the real evidence
to be used on the grounds that the threats were not Article 3 conduct) or protecting Article
3 absolutely (the legally correct choice, given that the Court accepted Gafgen's treatment
met the minimum threshold for Article 3), the majority instead focused on whether the
proceedings as a whole, including the way in which the evidence was obtained, were fair.65
In so doing, the Court chose to dilute the absoluteness of Article 3.
Gafgen v Germany highlights the problem with defining ill-‐treatment broadly when it is
protected absolutely: it creates results which conflict with the moral justification for
absoluteness. In such cases, it becomes necessary for the Court to choose between legal
formality and finding a way to reach what it considers the morally appropriate result.
Neither option is particularly satisfactory. Fortunately, the ECtHR’s approach is not the only
one available; there are two other ways in which the torture/ill-‐treatment distinction may
be drawn which produce a more legally sound framework.
62 This is the view taken by Greer, who accepts the Gafgen decision as morally justified because the Court chose to allow
the use of evidence obtained by ill-‐treatment (which, on the facts, Greer characterises as a fairly low degree of seriousness) in order to protect the rights of the kidnapped boy, J (namely his right to life and his right to be free from torture and ill-‐treatment): S.Greer, 'Should Police Threats to Torture Suspects Always be Severely Punished? Reflections on the Gafgen Case' (2011) 11 HRLR 67.
63 See e.g. L. Oette, n22, p.7; Gafgen v Germany, n42, para 10. 64 N. Simonsen, n36, notes that the applicant's argument that the real evidence tainted his confession at trial is somewhat
undermined by the fact that he had made statements, both at trial and in a published memoir, that his confession was solely out of remorse.
65 See above, ‘The Problematic Nature of the Court’s Reasoning’.
15
Alternative One: Narrow Definition, Absolute Protection
The first alternative to the ECtHR's approach is to define both torture and ill-‐treatment
narrowly, and afford absolute protection to both. On this view, the distinction between the
two categories of conduct would have no practical consequences. This distinction could be
drawn in two ways: (1) on the basis of the severity of the treatment, or (2) on the basis of
the purpose of the treatment.
The Severity Approach
Distinguishing between torture and ill-‐treatment on the basis of severity involves reading ill-‐
treatment more broadly than torture. However, in order to protect both absolutely, the
standard for the minimum threshold would be set much higher than that under the ECHR.
Such an approach appears to be taken under the International Covenant on Civil and
Political Rights (‘ICCPR’). Article 7 of the ICCPR states that “No one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment…” This has been
interpreted by the treaty’s monitoring body, the Human Rights Committee, as including
conduct such as violent arrests,66 but not extending to acts such as forcing an applicant to
leave an experimental clinical trial in order to serve detention.67 Moreover, the Committee
has emphasised, like the ECtHR, that statements obtained by either torture or other ill-‐
treatment are inadmissible at trial: “It is important for the discouragement of violations
under article 7 that the law must prohibit the use of admissibility in judicial proceedings of
statements or confessions obtained through torture or other prohibited treatment.”68
However, the absolute nature of Article 7 has not been subject to the same challenges as
Article 3 ECHR, as the Human Rights Committee considers far fewer cases than the ECtHR,
and the Human Rights Committee has not had the occasion to comment on the use of real
evidence at trial. Nevertheless, one would hope that it would reason consistently with its
66 Horvath v Australia, Views of the Human Rights Committee concerning Communication No. 1885/2009 (2014) paras 3.5-‐
3.8, 8.8. 67 G.J. v Lithuania, Decision of the Human Rights Committee concerning Communication No. 1894/2009 (2014) paras 3.1,
4.6. 68 UN Human Rights Committee, ‘CCPR General Comment 20’ (1992) para 12.
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existing jurisprudence by reading ill-‐treatment narrowly but ensuring it was protected
absolutely – thus rendering such evidence inadmissible.
The Purpose Approach
Alternatively, the absolute protection of ill-‐treatment alongside torture could be justified if
the distinction between the two forms of conduct were achieved by drawing the distinction
qualitatively, or horizontally. This means that the difference in treatment would be based
not on severity but rather on the purpose for which such treatment was inflicted. Such an
approach is favoured by Evans, who describes it as such:
“Why not abandon all thoughts of a 'vertical model' and replace it with a 'horizontal
model', in which 'torture' and 'inhuman' and 'degrading' treatment and punishment
all stand alongside each other. The first question to be asked would be whether the
form of ill-‐treatment or punishment is sufficiently serious to be deemed 'inhuman'. If
that threshold is met, then the next question is whether the ill-‐treatment was
purposive (in the sense of Article 1 of the UN Convention). If it was, then it should be
characterised as 'torture'. It should not be necessary for the 'suffering' to be of a
greater severity as well. It is the very fact of its purposive use that is the aggravating
factor.”69
This horizontal approach appears to have been adopted by the European Committee for the
Prevention of Torture. The Committee treats torture as severe, purposive, and requiring
some form of preparation; it views 'inhuman' and 'degrading' treatment as applicable to
detention conditions. Thus, the terms do not represent a hierarchy of severity but rather
treatment that is different in kind, based on the presence or absence of purpose.70
69 M. Evans, n61, p.382. Note that Evans is discussing the Convention Against Torture, but his suggestion could function
equally within the framework of the ECHR. See also M. Nowak & E. McArthur, 'The United Nations Convention Against Torture: A Commentary' (OUP, 2008) p.558.
70 M. Evans, n61, p.374.
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Regardless of whether a 'severity' or 'purpose' approach is adopted, drawing the outer
boundary of ill-‐treatment narrowly means that the conduct that falls within the scope of
Article 3 will fit with the view that we are seeking to prohibit that which is morally
reprehensible.
Alternative Two: Mixed Definition, Mixed Protection
The second alternative to the ECtHR’s approach is to allow a definition of ill-‐treatment that
is far broader than that of torture, but to balance this by affording absolute protection only
to torture. This option accepts that the severity-‐based distinction between torture and ill-‐
treatment has practical consequences. Setting a limit on the absoluteness of protection is,
however, justified because a broad category of ill-‐treatment falls outside the moral
rationale for absoluteness. Although this has the potential to be tricky in borderline cases, it
is more appropriate than the ECtHR’s approach in respect of cases of less serious ill-‐
treatment.
A clear example of this approach is found in a plain text reading of the UN Convention
Against Torture (‘CAT’). Article 2 of the Convention treats the prohibition on torture as
absolute and non-‐derogable.71 By contrast, other ill-‐treatment, which is provided for in
Article 16,72 is not afforded absolute protection.73 74 Of particular relevance to our
consideration of the Gafgen case is the fact that Article 15 only excludes evidence obtained
by torture.75 However, in contrast with the ECtHR’s approach, the CAT is up front about the
71 Article 2(2): “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political
instability or any other public emergency, may be invoked as a justification of torture.” 72 Article 16(1): “Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel,
inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity…”
73 Although Article 16(1) notes that “In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment”, this is not extended to the Article 2 absolute prohibition.
74 The Committee Against Torture has interpreted ill-‐treatment as being protected absolutely as well: 'General Comment No. 2' (2007) para 3 states that “[i]n practice, the definitional threshold between ill-‐treatment and torture is often not clear.” However, for the purpose of illustrating an alternative to the ECtHR's approach, the analysis of the Convention in this paper will be based on a plain-‐text reading of its provisions.
75 This is supported by the House of Lords in A and Others (No 2), n41, para 53. But see M. Nowak & E. McArthur, who argue that Article 15 should be interpreted to include evidence obtained by other forms of ill-‐treatment: n69, pp.534-‐535, 572.
18
fact that ill-‐treatment is not protected absolutely.76 This avoids the need to develop ad hoc
exceptions in cases that appear to justify them. Instead, the Convention can be read
inclusively in the knowledge that where there is a conflict with other rights it may be
necessary to place some limits on the reach of the protection of ill-‐treatment.
This alternative is also favoured by Shany, who seeks to construe the framework of the CAT
as composed of two prohibitions: an absolute prohibition against torture, and a relative
prohibition against other ill-‐treatment. With respect to the latter, he understands the
relative nature of the prohibition as allowing certain criminal law defences to
perpetrators.77 Moreover, Shany takes the view that, inter alia, the institutional argument in
favour of an absolute prohibition (i.e. the prospect of state abuse) is weaker for ill-‐
treatment, which is less serious than torture,
“...because the number of scenarios in which the application of these nasty, yet less
harmful, interrogation techniques could be justified from a consequentialist or
relativist perspective, on the balance, is larger; and, as a result, the potential for
abuse – application of these techniques in inappropriate circumstances – is smaller...
Hence, policy considerations might support the proposition that the absolute bar
against torture should not necessarily carry over to less severe forms of cruel,
inhuman or degrading punishment or treatment prohibited by international law.”78
However, Shany's solution continues to protect the prohibition on ill-‐treatment by allowing
deviations only in very limited circumstances. He introduces flexibility into the prohibition
by adopting the approach of the Israeli Supreme Court: treating 'other ill-‐treatment' as
unlawful, but enabling violators to plead the necessity defence in criminal trials.79 This is
only one way in which to limit the protection of ill-‐treatment, but it demonstrates that an
approach that affords absolute protection only to torture would still be able to uphold the
right of individuals to be free from ill-‐treatment. 76 Indeed, M. Evans notes that, in contrast with the ECHR, the CAT “formalises a distinction between torture on the one
hand and inhuman and degrading treatment on the other by attributing different legal consequences to them.” See n61, p.369.
77 Y. Shany, n56, p.840. 78 ibid, p.853. 79 Y. Shany, n56, p.869.
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In this paper, the second alternative will be understood to apply in a manner that seeks to
retain fairly strong protection of ill-‐treatment, by relying on the aforementioned distinction
between negative and positive obligations.80 The former will continue to be protected
absolutely, thereby recognising that ill-‐treatment continues to be prohibited. However, the
positive obligation will be protected only relatively, allowing exceptions where appropriate.
In order to evaluate which of these alternative approaches is the preferable approach to
take, it is necessary to flesh out the aims pursued in assigning a right an absolute nature.
Some consideration has already been given to the moral justification for absoluteness, but,
as will be seen in the next section, this is not the only relevant aim.
D. Absoluteness and the Torture/Ill-‐Treatment Distinction
Despite the ECtHR’s strong jurisprudence concerning the absoluteness of Article 3, the Court
has given little thought to the question of what it is trying to achieve by way of such
characterisation.81 Yet, it is the answer to this question that guides the evaluation of the
most preferable approach to take to distinguishing between torture and ill-‐treatment.
In her article on the issue,82 Mavronicola notes that absoluteness consists of two criteria.
The first is an ‘applicability criterion’, “which focuses on the question of whether and when
the applicability of a standard can be lawfully ‘displaced’ by other considerations.”83 With
respect to Article 3, its absolute nature means that it can never be lawfully displaced.84 This
may be justified on the basis of moral reprehensibility, which was recognised in section C as
one of the central bases underlying the absoluteness of Article 3.
80 See section A. 81 However, a few commentators have undertaken the task. See e.g. M.K. Addo and N. Grief, ‘Does Article 3 of the
European Convention on Human Rights Enshrine Absolute Rights?’ (1998) 9 EJIL 510; A. Gewirth, Human Rights: Essays on Justifications and Applications (University of Chicago Press, 1982), Ch.9; N. Mavronicola, ‘What is an “absolute right”? Deciphering Absoluteness in the Context of Article 3 of the European Convention on Human Rights’ (2012) 12 HRLR 723.
82 N. Mavronicola, n81. 83 ibid, p.729. 84 ibid, p.737.
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The second of Mavronicola’s criteria is the ‘specification criterion’, which “focuses on the
definition and delimitation of a standard...”85 It is from this criterion which two further aims
of absoluteness may be derived: in order to determine the boundaries of an absolute right,
clarity and inclusiveness must be balanced.
Clarity
If a right is to be considered an absolute standard it is crucial that its scope be expressed
clearly, because “... a very general principle suffers from too much uncertainty and
disagreement in its concrete application…”86 Thus, those rights which we consider
important enough to protect absolutely cannot be framed as a general standard, but must
be stated with a degree of specificity which is able to guide individuals and state officials.
In applying this to Article 3, it is necessary for there to be a clear threshold which
determines the distinction between Article 3 and non-‐Article 3 conduct. Developing a
minimum level of severity should be done in accordance with the moral justification for
absoluteness. For example, Mavronicola notes that one of the elements that supports the
absoluteness of Article 3 is that it applies irrespective of the victim’s conduct.87 This reflects
the fact that the provision is intended to prohibit conduct that is so morally reprehensible
that it is never acceptable. The minimum threshold for Article 3 conduct should reflect this.
Thus, if within Article 3 we start developing exceptions based on the victim's conduct, the
justification for absoluteness is shaky.
The ECtHR’s approach fails here, because in Gafgen v Germany the Court’s willingness to
develop an exception to the application of Article 3 in the context of Article 6 was based on
the fact that Gafgen was responsible for the murder of Jakob. As was stated in Section B,
this is problematic for legal certainty as the Court has created exceptions without providing
85 ibid, p.729. 86 N. Mavronicola, n81, p.724. 87 ibid, p.736.
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any guidance as to when, or on what basis, such exception will be justifiable.88 Thus, the
alternative approaches must be assessed on the basis of their ability to predict when
conduct is prohibited with a high degree of legal certainty.
Inclusiveness
Although clarity is a necessary aspect of absoluteness, it nevertheless gives rise to two
specific risks. The first is over-‐specificity, where the desire to avoid generality results in a
very limited set of circumstances to which the standard may be applied. This is problematic
because “a highly specified standard provides little ex ante guidance and is not ‘teachable
and usable’.”89 Such standards are unsuitable for clearly outlining absolute prohibitions.
A further risk attached to pursuing clarity is that relying on clear dividing lines lends itself to
the possibility of abuse by States. This is particularly the case for international human rights
law, which is largely
“applied in the absence of effective judicial review, [meaning] states often enjoy, in
practice, an unchallenged power of discretion on the manner of applying relative
norms. This state of affairs... invites abuse... the inclination of state institutions to
guard general societal interests, even at the expense of individual rights, might lead
to the misapplication of relative international legal standards.”90
The risk of abuse is not a mere hypothetical: the US approach to torture following the 11
September 2001 terrorist attacks provides a clear example. In his analysis of the problem,
Waldron explains this approach.91 He notes that the Bush Administration attempted to
define the exact point at which a definition of torture takes effect, and comments that this
88 The Court’s willingness to make exceptions extends beyond the issue of real evidence. In particular, it has been willing to
accept that the standard used for Article 3 may differ in deportation cases. See e.g. Babar Ahmad and Others v UK (2013) 56 EHRR 1, para 177, in which the Court stated that “...treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case.”
89 N. Mavronicola, n81, p.742 (footnotes omitted). 90 Y. Shany, n56, p.844. 91 J. Waldron, ‘Torture and Positive Law: Jurisprudence for the White House’ (2005) 105 Colum.L.Rev. 1681.
22
appears to represent “an attempt to weaken or undermine the prohibition, by portraying it
as something like a speed limit which we are entitled to push up against as closely as we
can”, or which we might expect to be treated with some degree of lenience.92
Emblematic of the US attempt to weaken the prohibition is the Bybee memorandum.93 This
legal memorandum was signed by Jay S. Bybee, the Assistant Attorney General for the
Office of Legal Counsel during the Bush Administration. It provided a very restrictive
definition of torture in order to justify US conduct in extra-‐territorial interrogations. In the
memorandum, Bybee purported to rely on the ECtHR’s decision in Ireland v UK, which found
that the ‘five techniques’, which were the subject of the case, were ill-‐treatment rather than
torture.94 However, he failed to acknowledge that the European Commission in Ireland v
UK,95 and indeed the ECtHR in subsequent decisions,96 treated the conduct as torture.
Moreover, Bybee ignored the fact that under the ECHR both forms of treatment are
protected absolutely, and it is therefore inappropriate to rely on the distinction drawn by
the ECtHR in American cases.97 Nevertheless, in defining the severity of pain which applies
to torture, Bybee relied on such jurisprudence in order to reach the conclusion that
“torture [under US law] covers only extreme acts. Severe pain is generally of the
kind difficult for the victim to endure. Where the pain is physical, it must be of an
intensity akin to that which accompanies serious physical injury such as death or
organ failure. Severe mental pain requires suffering not just at the moment of
infliction but it also requires lasting psychological harm, such as seen in mental
disorders like post-‐traumatic stress disorder.”98
Although this part of the Bybee memorandum was ultimately rejected by the Bush
Administration, it illustrates the risk of abuse attached to bright line reasoning: not only 92 ibid, p.1703. 93 J. Bybee, 'Memorandum for Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation
under 18 U.S.C. ss. 2340-‐2340A' (1 August 2002) <http://news.findlaw.com/nytimes/docs/doj/bybee80102mem.pdf> accessed 28 July 2014 (hereinafter 'Bybee Memorandum').
94 Bybee Memorandum, n93, pp. 28-‐29; Ireland v UK, n5, paras 167-‐168. 95 Ireland v UK (1976) Y.B. Eur. Conv. on Human Rights 512 (Eur. Comm. of Human Rights) (Report of the Commission). 96 See e.g. Selmouni v France, n5, para 101: “...the Court considers that certain acts which were classified in the past as
'inhuman and degrading treatment' as opposed to 'torture' could be classified differently in future.” 97 J. Waldron, n91, pp.1705-‐1706. 98 Bybee Memorandum, n93, p.46.
23
might states use torture, but they might try to legally justify it by developing definitions
which place serious conduct outside the boundaries of torture.99 Guarding against such
prospects is crucial for, as Waldron notes:
“To be willing to abandon the prohibition on torture or to define it out of its
existence is to be willing to sit back and watch the whole enterprise unravel. It is to
be ready to contemplate with equanimity the prospect that the rule of law will no
longer hold out the clear promise of nonbrutality – that the state, which it aims to
control, will be permitted to operate towards some individuals who are wholly under
its power with methods of brutality from which the law itself recoils.”100
Consequently, it is clear that there is real merit in recognising that some treatment that may
not reach the threshold of torture is nevertheless abhorrent and should be prohibited. This
confirms that, whilst it is important for absolute rights to pursue clarity, they must not be
too restricted in scope, so as to avoid excluding conduct that should be protected.
Reconciling Conflicting Aims
There is a degree of tension between the pursuit of clarity and inclusiveness, in a way that
fits with the moral justification for absolute prohibitions. This results from the fact that if
the scope of the prohibition is over-‐inclusive, it may capture conduct that falls beyond the
threshold of moral reprehensibility. Moreover, it reduces the clarity of the right, as it is
difficult to draw clear boundaries when dealing with extensive circumstances. However, if it
is under-‐inclusive, unacceptable conduct may fall beyond the reach of the prohibition,
thereby resulting in the absence of legal protection for morally reprehensible acts. Thus, the
aims pursued by the absolute prohibition of torture and ill-‐treatment are not entirely
complementary. The ECtHR’s approach fails to balance these aims properly: by reading ill-‐
treatment broadly the Court has pursued inclusiveness in a manner which has led to legal
99 Similar arguments were made by the Israeli Government in Public Committee against Torture in Israel et al. v The State
of Israel and the General Security Service (GSS), Judgment of 6 September 1999, para 17. 100 J. Waldron, n91, p.1743.
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conclusions that do not fit with the moral justification for absoluteness. Moreover,
attempting to rectify this by allowing an exception to Article 3 has impacted clarity, as doing
so ignores the boundaries of the right, by choosing to exclude Article 3 conduct from
protection.101 It is therefore necessary to evaluate which of the alternative approaches
described above is best able to strike an appropriate balance between these conflicting
aims.
The first alternative adopts a narrow definition of torture and ill-‐treatment in order to
protect both absolutely. Doing so places emphasis on moral reprehensibility and clarity. This
is because adopting a narrow definition allows for a division between acceptable and
unacceptable conduct, which is well beyond the grey areas of what conduct is serious
enough to be protected absolutely. Consequently, the risk of controversial borderline cases
is smaller. Moreover, even where problems do arise at the boundary, and the Court
oversteps the line in an individual case, the scope is narrow enough that conduct would still
fit with the moral justification. Thus, the high threshold makes it easier to provide clarity
without sacrificing the aim of protecting individuals from moral abhorrent treatment.
However, a significant problem with this approach is that it is likely to exclude a broad range
of mistreatment from any protection whatsoever. Thus, while the fairly restrictive nature of
this approach may fit with the view that only a limited scope of conduct should be protected
in a manner which trumps all other rights, it fails to recognise and account for the fact that
we may not want less serious forms of ill-‐treatment to escape protection altogether.
The second alternative attempts to strike the balance between the aims of absoluteness by
allowing a broad definition of ill-‐treatment but restricting absolute protection to the
prohibition on torture. This approach balances inclusiveness with moral reprehensibility by
giving practical effect to the distinction between torture and ill-‐treatment. Moreover, the
threshold dividing the two forms of treatment promotes clarity, as it makes it explicit when
exceptions may be applicable. Additionally, such exceptions must be clearly defined, and are
restricted in their application to the positive obligation to protect ill-‐treatment. However, in 101 K. Rigg, n44, pp. 13-‐14: “...many cases involve treatment that does not fall neatly into one specific category. In such
cases, the Court has struggled with the balance between, on the one hand, providing legal certainty and upholding the 'absolute' nature of the prohibition and, on the other hand, adopting an inclusive interpretation that takes into account all relevant factors.”
25
contrast with the first alternative, a finding that conduct constitutes a less serious form of
ill-‐treatment does not altogether deprive an individual of protection. This is important
because, as Waldron notes:
“‘Inhuman treatment’ means what it says, and its antonymic connection with
‘human rights’ is not just happenstance. To treat a person inhumanly is to treat him
in a way that no human should ever be treated. On this basis it would not be hard to
argue that the prohibitions on inhuman treatment in the Universal Declaration of
Human Rights, the Covenant, and the ECHR are as much a paradigm of the
international human rights movement as the absolute prohibition on torture.”102
Thus, of the two alternatives it appears that the second upholds the most appropriate
balance between the aims pursued by absoluteness. This is because it maintains clear
divisions which allow for an inclusive approach but, by accepting ill-‐treatment as non-‐
absolute, it allows the moral justification of absoluteness to be maintained without avoiding
scrutiny of such conduct altogether. This will be further demonstrated through an
application of this approach to the facts of the Gafgen case.
E. Gafgen Revisited
How would Gafgen v Germany have panned out if the second alternative approach were
applied to the facts of the case? The shift in the absoluteness of the right requires
consideration of both aspects of the case, in order to determine how it might apply.
Ill-‐Treatment of Gafgen
The conduct to which Gafgen was subjected was classified by the Court as ill-‐treatment. This
would be the same under the alternative approach, as the definition of ill-‐treatment is
unchanged. This means that Germany interfered with Gafgen’s Article 3 right. Moreover, it
was stated above that under the second alternative the negative obligation – i.e. the
102 J. Waldron, n91, p.1745.
26
prohibition of ill-‐treatment – will continue to be protected absolutely,103 thereby rendering
any interference with the right a violation. However, as was noted in footnote 62, Greer
takes the view that the facts of the Gafgen case reflect a conflict of absolute rights: Gafgen’s
Article 3 right versus Jakob’s Article 3 right.104 Consequently, he argues, the rights cannot
co-‐exist and some form of limitation is inevitable. Greer proposes that this conflict should
be resolved on the basis of moral reasoning, as this is the most appropriate way to settle
such legal deadlock.105 He concludes that Jakob’s right should prevail, as the infringement of
Gafgen’s right was far less serious.106 This would result in a limitation on the prohibition of
Article 3 conduct in cases where there is a conflict of Article 3 rights.
However, Greer’s reasoning relies on a conflict of absolute rights that does not in fact
exist.107 This is because he ignores a crucial distinction, made by Nagel, between the
concepts of agent-‐neutral and agent-‐relative values.108 Nagel describes the distinction as
follows. Agent-‐neutral values are those that everyone must try to prevent generally. For
example, if we consider murder to be agent-‐neutral “it means that everyone has a reason to
try to minimise the overall number of murders, independent of who commits them – and
this might in some circumstances mean murdering a few to prevent the murder of a large
number.” By contrast, agent-‐relative values are imposed on individual agents.109 Thus, if
murder were agent-‐relative, each individual would be prohibited from committing murder,
but would have no obligation to prevent others from being murdered,110 unless there was
also a specific positive obligation imposed on them. With respect to rights, Nagel argues
that they are agent-‐relative: they “tell us in the first instance what not to do to other
people, rather than what to prevent from happening to them.”111 This is important because,
in Gafgen, it was not the State that was ill-‐treating Jakob but rather Gafgen, a private
individual. The absence of a general duty on all individuals to prevent Article 3 conduct
103 See section C. 104 S. Greer, n62, p.80 105 S. Greer, n62, p.78. 106 ibid, pp.84-‐85. 107 See also S. Smet, ‘Conflicts between Absolute Rights: A Reply to Steven Greer’ (2013) 13(3) HRLR 469, p.473. Smet
disagrees with Greer’s characterisation of the facts and prefers to frame them as a conflict between Jakob’s Article 2 right, which is not absolute, and Gafgen’s Article 3 right, which is.
108 T. Nagel, n60, p.87 109 See section A. 110 T. Nagel, n60, pp.87-‐88. 111 Ibid, p.88.
27
means that there is not, as Greer asserts, a conflict between rights. Rather, there are simply
two independent violations of the right: a violation of Jakob’s Article 3 right, on the basis of
his mistreatment by Gafgen, and a violation of Gafgen’s Article 3 right, because of his
mistreatment by officer E. Thus, Greer’s justification for restricting Gafgen’s right falls away,
and the interference by Germany seems, on the face of it, to be a violation of Gafgen’s right
under Article 3.
Yet, there is a further complication. This is the fact that, whilst Article 3 is not an agent-‐
neutral value, it nevertheless imposes on the State both a negative obligation (not to ill-‐
treat an individual) and a positive obligation (to prevent private individuals from ill-‐treating
other individuals). Here, the existence of the State’s positive obligation does not alter the
fact that the right is to be considered agent-‐relative, as this broad-‐reaching duty is not a
general one but rather is imposed solely on the State. Although the State is obliged to
uphold both its positive and negative obligations, and should try to adopt approaches that
reflect this, there may be situations in which it is forced to make a choice between them.
The facts of Gafgen embody such a case. In these situations, the negative obligation takes
precedence over the positive obligation, because under the second alternative approach the
former continues to be protected absolutely whereas the latter does not.112 This is further
justified by the fact that the State has ultimate control over whether it meets its negative
obligation, whereas aspects of the positive obligation may be out of its hands. This is
reflected in the Court’s recognition that the positive obligation requires that a State take
reasonable measures, not that it must definitively prevent the use of Article 3 conduct by a
private individual.113 On this view, the State should have refrained from ill-‐treating Gafgen,
even though it knew this would restrict its ability to prevent the ill-‐treatment of Jakob.
Germany was therefore responsible for violating Article 3 on account of its ill-‐treatment of
Gafgen. This shows how ill-‐treatment can continue to be protected strongly under the
second alternative approach, by protecting the negative obligation absolutely, but the
positive obligation only relatively.
112 See also S. Smet, n107, p.475. 113 Osman v UK (1998) 29 EHRR 245, para 116.
28
Use of Real Evidence
With respect to the use of real evidence obtained through statements made as a result of ill-‐
treatment, the alternative approach allows for greater clarity of reasoning than under the
ECtHR’s approach. In Gafgen, the absolute nature of Article 3 meant that the Court had to
‘fudge’ its reasoning in order to reach the conclusion that it was acceptable to use the real
evidence in Gafgen’s criminal trial, despite it being linked to confessions obtained by his ill-‐
treatment. However, under the alternative approach ill-‐treatment is not protected
absolutely, and it is therefore possible – as will be seen below – for the Court’s result to be
reached in a justifiable manner.
It was acknowledged above that adopting an approach which affords only relative
protection to the positive obligation concerning ill-‐treatment would allow protection to be
limited in accordance with the aim of prohibiting morally reprehensible conduct. Thus, we
may want to protect individuals from certain conduct but accept that it is not necessary to
rigorously prevent all circumstances in which the prohibition of ill-‐treatment is indirectly
undermined. Thus, the fact that ill-‐treatment is not absolute means that the approach
which the Court in Gafgen brought in through the back door – assessing the impact of the
‘fruits of the poisonous tree’ on the fairness of a trial – may be explicitly adopted under the
alternative approach. The difference in the nature of protection of ill-‐treatment therefore
allows an inclusive approach to the definition of ill-‐treatment to be adopted without raising
concerns for the moral justification. In order to maintain clarity, rather than descending into
a solely case-‐by-‐case analysis of the application of ill-‐treatment, it may be necessary to
determine clear, exhaustive, exceptions – such as the admissibility of corroborated real
evidence – or at least to acknowledge that in the context of trial evidence a balancing
approach will be employed, comparing the nature and weight of evidence obtained by ill-‐
treatment with its impact on the fairness of a trial. The former fits with the Convention
Against Torture, which only prohibits statements obtained by ill-‐treatment; it omits any
reference to the use of real evidence.
29
Thus, when applied to the facts of the Gafgen case, the second alternative would allow the
Court to apply the prohibition of ill-‐treatment in order to find a violation on the basis of
conduct to which Gafgen was subjected. However, because the prohibition is relative rather
than absolute, the ECtHR would also be free to acknowledge the use of corroborated real
evidence as a specific exception to the positive obligation on a State to protect the right to
be free from ill-‐treatment. Consequently, the Court would be able to reach the result that
appeared to be morally appropriate on the facts of Gafgen, without relying on its
unsatisfactory reasoning.
G. Conclusion
The ECHR's prohibition on torture and other ill-‐treatment was intended to be absolute:
Article 3 is framed without exceptions, and it is specifically protected from derogation.114
The ECtHR has acknowledged this in its case-‐law, and has held that, as a consequence, the
provision applies irrespective of a victim's conduct. This paper has considered the
justification for affording a right absolute status. It was argued that the absoluteness of a
right reflects three aims: primarily, the prevention of morally reprehensible conduct and, in
addition, the pursuit of clarity and inclusiveness. However, the way in which the ECtHR has
developed the framework of applicability for Article 3 has led to a very wide range of
conduct being included within the absolute prohibition. Thus, by defining torture narrowly,
but other ill-‐treatment broadly, the ECtHR has made it possible for the legally 'correct' result
to conflict with the moral justification for absoluteness.
This paper put forth this disparity as an explanation for why the majority of the Grand
Chamber in Gafgen v Germany was led to its decision to allow the use of real evidence
obtained by ill-‐treatment under Article 3. Having used the judgment to illustrate the
unsatisfactory nature of the ECtHR's current approach to the absolute nature of Article 3,
two alternatives were put forth. These were assessed with reference to their ability to
balance the aims of absoluteness. It was demonstrated that it is preferable to read ill-‐
treatment broadly but only protect torture absolutely, as this allows for a wider degree of 114 Article 15 ECHR, n4.
30
clearly delineated protection that does not extend beyond the moral boundaries of
absoluteness. An application of this approach to the facts of Gafgen v Germany showed how
the Court might be able to employ greater flexibility in cases of ill-‐treatment without
sacrificing coherent reasoning or legal certainty.
It is the hope of the author that this paper has demonstrated the importance of developing
a methodology for Article 3 that not only acknowledges the consequences of absoluteness,
but also the justification behind affording such protection. At present, the text of the ECHR
restricts the Court’s ability to implement the changes proposed in this paper, as it requires
equal treatment of torture and other ill-‐treatment, and has been interpreted in the Court’s
jurisprudence as providing absolute protection. However, the issues highlighted should
provide guidance for the drafters of future human rights documents, and an impetus for
considering the redrafting of Article 3 ECHR.
31
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TABLE OF CASES
A and others v Secretary of State for the Home Department (No 2) [2006] 2 AC 221
Babar Ahmad and Others v UK (2013) 56 EHRR 1
Belgian Linguistic Case (1968) 1 EHRR 252
Chahal v UK (1996) 23 EHRR 413
Gafgen v Germany [2008] ECHR 565
- Dissenting Opinion of Judge Kalaydjieva
Gafgen v Germany (2010) 52 EHRR 1
- Joint Partly Dissenting Opinion of Judges Rozakis, Tulkens, Jebens, Ziemele,
Bianku and Power
G.J. v Lithuania, Decision of the Human Rights Committee concerning Communication No.
1894/2009
Greek Case, Report of 5 November 1989, Yearbook XII (1969)
Horvath v Australia, Views of the Human Rights Committee concerning Communication No.
1885/2009 (2014)
Ireland v UK (1976) Y.B. Eur. Conv. on Human Rights 512 (Eur. Comm. of Human Rights)
(Report of the Commission)
Ireland v UK (1978) 2 EHRR 25
35
Jalloh v Germany (2007) 44 EHRR 32
Larioshina v Russia (App no.56869/00) (2002) Second Admissibility Decision
Osman v UK (1989) 29 EHRR 245
Public Committee against Torture in Israel et al. v The State of Israel and the General
Security Service (GSS), Judgment of 6 September 1999
Selmouni v France (1999) 29 EHRR 403
Tyrer v UK (1978) 2 EHRR 1
- Separate Opinion of Judge Sir Gerald Fitzmaurice